Richard Scudamore: Slings and arrows or outrageous (good) fortune?Daniel Northall
Is the criticism fair?
Scudamore the employee
The threshold of ‘discriminatory behaviour’
Scudamore the director
Scudamore and The FA
This is ostensibly for two reasons. The first is that:
Mr Scudamore was not an employee of The Football Association and, as such, we had no position in terms of employment policy or taking disciplinary action.
So far, so obvious. If the FA is not Scudamore’s employer than it cannot discipline him as an employee. But what about action taken in the FA’s capacity as the national governing body for football in England? As to this, the statement released went on to say that:
In terms of wider FA disciplinary action, it was advised that The FA does not as a matter of policy consider private communications sent with a legitimate expectation of privacy to amount to professional misconduct. The FA has applied this policy on an ongoing basis and in relation to numerous other cases.
The statement does not say where this advice came from or what the ‘numerous other cases’ were that this policy was applied to. But is the advice correct?
The FA Handbook for 2013-201416, which contains the Rules and Regulations of the Association, also includes an Equality Policy. That policy sets out the following statements of principle:
The aim of this policy is to ensure that everyone is treated fairly and with respect and that The FA is equally accessible to all. All Participants should abide and adhere to this Policy and to the requirements of the Equality Act 2010.
The FA’s commitment is to promote inclusion and to confront and eliminate discrimination whether by reason of age, gender, gender reassignment, sexual orientation, marital status or civil partnership, race, nationality, ethnic origin, colour, religion or belief, ability or disability, pregnancy and maternity and to encourage equal opportunities.
The FA commits itself to the immediate investigation of any allegation, when it is brought to their attention, of discrimination and where such is found to be the case, The FA will require that the practice stop and impose sanctions as appropriate.
Clearly, the FA commits itself to tackling discrimination in all forms with the imposition of sanctions where appropriate following an investigation.
Section E of the Rules of the Association set out the standards of conduct that the FA requires of ‘Participants’. A Participant is defined by Rule A2 as:
…an Affiliated Association, Authorised Agent, Competition, Club, Club Official, Licensed Agent, Player, Official, Match Official, Management Committee Member, Member or Employee of an affiliated Club and all such persons who are from time to time participating in any activity sanctioned either directly or indirectly by The Association.
The Premier League is a competition sanctioned by the FA and so it must follow that Scudamore is a person participating in an activity so sanctioned. He is therefore a ‘Participant’.
Rules E3 and E4 are the main anti-discrimination provisions. Rule E3 (1) and (2) provides that:
(1) A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour.
(2) A breach of Rule E3(1) is an “Aggravated Breach” where it includes a reference to any one or more of the following :- ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability.
Rule E4 provides that:
A Participant shall not carry out any act of discrimination by reason of ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation, disability, age, pregnancy, maternity, marital status or civil partnership, unless otherwise permitted both by law and The Rules or regulations of The Association.
Scudamore’s critics would argue that he has committed an aggravated breach of Rule E3 or, at the very least, a breach of Rule E4.
On their face, what the above rules do not appear to provide is any warrant for the FA not to take action on the ground that the conduct in question formed part of a private communication. In accordance with the Rules, the only determining issue is whether the communication is discriminatory. As discussed above, a private communication may, in some circumstances, be discriminatory nonetheless. One would have thought that, at the very least, an investigation would be required to ascertain whether the communication was discriminatory or not.
Whether the controversy surrounding Richard Scudamore will rumble on remains to be seen but, from a legal perspective at least, a number of unanswered questions remain.
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- Tags: Companies Act | Contract Law | Corporate Law | Discrimination | Employment Law | Equality | Equality Act 2010 | Football | Governance | Premier League | Privacy | Regulation | The FA | The Premier League Handbook
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